Davison v. St. Paul Fire & Marine Ins. Co.

Citation75 Wis.2d 190,248 N.W.2d 433
Decision Date06 January 1977
Docket NumberNo. 75-245,75-245
PartiesMargie DAVISON and Howard Davison, Plaintiffs-Respondents, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Foreign Corporation, and Columbia Hospital, a Wisconsin Corporation, Defendants-Appellants.
CourtUnited States State Supreme Court of Wisconsin

A tort action has been commenced by Margie Davison and Howard Davison, her husband, plaintiffs-respondents, against Columbia Hospital and its insurer, defendants-appellants, to recover damages for alleged negligence and medical malpractice in the care and treatment afforded Margie Davison while a patient at the hospital.

On July 21, 1975, the trial court entered an order directing the hospital to produce, for inspection and copying by counsel for the plaintiffs, certain written materials Wis.2d 587. See: secs. 804.01 and 804.09, hospital has appealed from this order.

Richard J. Palmersheim, James L. Thomas, argued, and Law Offices of Richard J. Palmersheim, Milwaukee, for defendants-appellants.

Stanley F. Schellinger, James G. Doyle, James A. Baxter, argued, and Schellinger & Doyle, S. C., Milwaukee, for plaintiffs-respondents.

CONNOR T. HANSEN, Justice.

The complaint alleges that the hospital negligently permitted a staff physician (Dr. John W. R. Thoma), who it knew or should have known was unqualified and incompetent, to perform a hysterectomy upon Margie Davison; that the hospital negligently failed to bring to the attention of a qualified physician clinical signs of post-operative complications; that the hospital negligently failed to see to it that Margie Davison received competent medical post-operative care; and that the hospital negligently failed to ascertain that the attending staff physician had adopted an inadequate preoperative diagnosis. The hospital answered, denying all negligence.

This appeal centers around the discovery activities of the plaintiffs during the pendency of the action. Sometime prior to November, 1974, the plaintiffs served a subpoena duces tecum upon four staff physician members of the Hospital Tissue Committee, the Hospital Executive Committee, and the Department of Obstetrics and Gynecology. The subpoena ordered the physicians to produce all notes, records, correspondence, reports or memorandum of the said committees relating to the care and treatment of Margie Davison by Dr. Thoma from July 1, 1970, on. The plaintiffs also sought to take the depositions of the same four staff physicians, Doctors, Erbes, Boyd, Burgess and Kretzschmar.

On November 1, 1974, the trial court, on request of the hospital issued an order commanding the plaintiffs to show cause why the court should not issue a protective order pursuant to sec. 887.12(3), Stats., suppressing the depositions of the four staff physicians and denying discovery of papers and documents set forth in the subpoena on the grounds that such testimony, papers and documents were privileged and irrelevant.

Following a hearing on the order to show cause the trial court determined that it would withhold a ruling on the motion for a protective order until the adjourned depositions were held and an actual refusal to produce the reports was on the record and certified to the circuit court for resolution.

On April 11, 1975, the plaintiffs served a second subpoena duces tecum on the hospital's administrator, Paul Kempe, as custodian of a different and more detailed enumerated series of committee notes, records, recommendations, correspondence, reports, memorandum, minutes and other writings, directing him to produce the same at a deposition to be held on April 22, 1975. Joseph C. Rogers, assistant administrator of the hospital, appeared at the hearing with all of the demanded reports and documents known to be in existence in the hospital files, in a sealed envelope. On the advice of counsel, Rogers refused to produce the documents. Dr. Boyd also appeared at the deposition but refused to answer certain questions relating to the Hospital Tissue Committee activities on the grounds of privilege. The questions involving the production of the documents and depositions of Rogers and Dr. Boyd were certified to the circuit court for disposition.

On May 16, 1975, the plaintiffs brought an order to show cause seeking to resolve the controversy surrounding the privilege asserted by the hospital, and to compel the production of the various committee documents demanded by the April 11, 1975, subpoena for inspection and copying.

The trial court then issued a memorandum decision in which it determined that the privilege asserted by the hospital did not exist under either statutory or common law. It also denied the motion of the hospital for a protective order as to the first subpoena duces tecum.

On July 21, 1975, the plaintiffs brought on another order to show cause seeking, among other things, to compel the hospital to produce the committee documentation previously subpoenaed on April 11, 1975, for inspection and copying. On the same date, the court issued an order, pursuant to sec. 269.57(1), Stats., directing the hospital to produce for inspection and copying, the written materials set forth in the subpoena served upon Paul Kempe, the hospital administrator, on April 11, 1975. All previous orders imposing time limitations were vacated and the pretrial order was stayed pending this appeal.

The first subpoena and the April 11, 1975, subpoena served on the hospital administrator demanded the production of somewhat different information. However, for the purpose of this appeal, we do not deem the differences to be significant.

Three issues are presented:

1. Does a statutory testimonial privilege exist, protecting the proceedings and reports of the Hospital Tissue Committee and other similar hospital staff peer review committees from disclosure through discovery devices in civil litigation?

2. Does a common-law testimonial privilege exist, protecting the proceedings and reports of the Hospital Tissue Committee and other similar hospital staff peer review committees from disclosure through discovery devices in civil litigation?

3. If neither statutory nor commonlaw testimonial privilege exist, should this court, on appeal, create such a privilege?

STATUTORY PRIVILEGE.

The hospital asserts that a statutory privilege exists, which protects the proceedings and reports of the proceedings of the Hospital Tissue Committee and other hospital staff peer review committees from discovery in civil litigation.

It is the position of the hospital that sec. 905.02, Stats., together with sec. H24.04(1)(n) of the Wisconsin Administrative Code, operate to grant a privilege to hospital staff peer review committees. Sec. 905.02 reads as follows:

'905.02 Required reports privileged by statute. A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if provided by law. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if provided by law. No privilege exists under this section in actions involving false swearing, fraudulent writing, fraud in the return or report, or other failure to comply with the law in question.'

Sec. H24.04(1), of the Wisconsin Administrative Code governs the organization and administration of hospitals in Wisconsin. Sec. H24.04(1)(j) requires the establishment of an executive committee; sec. H24.04(1)(k) requires the establishment of a credentials committee; and sec. H24.04(1)(n) requires the establishment of a hospital tissue committee. As set forth in the Code, the functions and responsibilities of the various committees include postoperative: (1) review and analysis of clinical work done by the hospital and the hospital medical staff personnel; (2) consideration of various cases in terms of potential errors in diagnosis and the results of treatment; (3) review, analysis and evaluating of the clinical work of staff members; (4) constructive professional criticism of staff members; and (5) continuing medical education.

The hospital relies upon the language of the Administrative Code pertaining to the hospital tissue committee to argue that the reports and proceedings of the tissue committee are to remain confidential and that in the terms of sec. 905.02, Stats., this privilege is '. . . provided by law.'

Sec. H24.04(1)(n) states that the hospital tissue committee is required to review and evaluate all surgery performed in the hospital on the basis of an agreement or disagreement among the preoperative, postoperative and pathological diagnoses, and on the acceptability of the procedure undertaken. Sec. H24.04(1)(n) 1. requires the committee to meet monthly and file a written report of its proceedings to the hospital executive committee. Sec. H24.04(1) (n) 2., upon which the hospital specifically relies for the privilege, reads:

'2. This committee's work shall include continuing education through such mechanisms as utilization of its findings in the form of hypothetical cases and/or review of cases by category at staff meetings and/or publishing in coded form physicians' standings in the hospital regarding percentage of cases in which normal tissue is involved.'

It is the position of the hospital that sec. H24.04(1)(n) 2. of the Wisconsin Administrative Code, which requires that the committee's findings be in the form of hypothetical cases and in coded form as to physicians, indicates a clear legislative intent that the reports and proceedings of the committee are to remain confidential. Thus, submits the hospital, this expression of intent affords the committee activity the privilege referred to in sec. 905.02, Stats.

Our reading of sec. 905.02, Stats., and related cases, brings us to the opposite conclusion. Sec....

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